Is there Prejudice When A Retained Expert Witness is Called to Testify for Opposition

This case, stemming from an auto accident involving a country’s reserve deputy, was heard on appeal to the Missouri Court of Appeals following a jury verdict against the County. The County brought five points on appeal, one of which concerned the admission of an expert witness testimony. The County’s retained expert witness was being called to testify by the opposing counsel. The County argued that it was prejudiced by Plaintiff’s failure in response to interrogatory to identify the County’s retained expert as a witness for Plaintiff.

Judge Nancy Steffen Rahmeyer began her opinion on this decision by reiterating the rule that a trial court’s decision whether to admit an expert’s testimony will not be disturbed on appeal absent an abuse of discretion. A trial court will be found to have abused its discretion when “a ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration,” the judge wrote, citing McGuire v. Seltsam (Mo. banc 2004). A determination of prejudice by the erroneous admission of evidence was predicated in large part on the facts and circumstances of the particular case.

The County complained that its retained expert witness shouldn’t have been allowed to testify on behalf of Plaintiff because “she was not named as an expert witness during the discovery process.” The County claimed Plaintiff’s failure to list the expert in an interrogatory request violated Rule 56.01(b)(4)(a). This was an abuse of discretion, they claimed.

The trial was set for December 2, 2013.

The County hired the expert two years before trial in October 2011, but she was not named as a retained expert until November 14, 2013 by the County. The expert deposition was acquired by Plaintiff on November 26, 2013. On that same date—six days prior to trial—the County told the trial court it was informed by Plaintiff’s counsel that it intended to call the County’s expert as a witness for their side. The County also explained that the expert was named in a witness list on that same date, which identified the County’s expert and stated that she would be called in Plaintiff’s case in chief. The County was even told the date and time that its expert would be called.

Judge Rahmeyer held that, from that record, the trial court could have concluded that after the expert witness was named by the County two weeks before trial and during the deposition that something was said that caused Plaintiff’s attorney to decide that County’s expert would be good for them. This deposition testimony may also have caused the County to have some misgivings about the expert.

The County’s claim that it was prejudiced because it “removed the ability of [the County] to decide whether to call her as a witness at all” was “specious,” Judge Rahmeyer reasoned. The County knew or could have known what the expert witness would say two years before its notice to Plaintiff.

The Court of Appeals held that it was clear from the record that the parties were engaging in discovery right up to the time of trial, and that there was no prejudice to the County because of the notice by Plaintiff at the deposition and the subsequent written notice that Plaintiff intended to call County’s witness in her case.

The County’s attempt to claim a novel interpretation of Rule 56.01(b)(4)(a), which would absolutely prohibit a trial judge from admitting testimony from an expert (or any other witness) that was not properly disclosed by supplementing interrogatory answers, was unsupported in the rule itself or in case law. As a result, the innovative argument was denied.

The appellate review was as to whether the trial court abused its discretion in allowing the County’s expert known to, retained by, and disclosed by the County, to testify. It does not shock our sense of justice, Judge Rahmeyer held, and thus, there was no merit to the County’s claim. The judgment was affirmed.

By: Kurt R. Mattson, LLM, J.D. 20+ years of legal experience

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